dissenting.
Respectfully, I dissent.
There is much about the Majority Opinion which does not withstand scrutiny. It is a glaring contradiction to state the trial court “was in error” when it “failed to recognize the conclusive nature of the matters admitted” (p. 621), and then to hold these “conclusive” admissions did not entitle the appellant to a directed verdict (p. 622).
The three admissions were as follows:
1. It is a departure from accepted standards of medical care for a surgeon to perform a mastectomy without having the patient’s consent for the surgeon to perform a mastectomy.
2. A surgeon who performs a mastectomy on a patient without first obtaining the patient’s consent to his performing the mastectomy is not acting as a reasonable competent surgeon under the circumstances.
3. Defendant Richard Schwartz did not have the consent of Plaintiff Ellen Lewis to perform a mastectomy on her on October 17, 1988.
These admissions constitute a cause of action for surgery performed without consent, and there is no way to explain this away, although the Majority Opinion attempts to do so by suggesting they do not dispose of the “appellant’s principal contention, that she was subjected to an unnecessary mastectomy.” Whether the mastectomy was necessary or unnecessary begs the issue. The *623appellant’s position, as stated throughout and in the Majority Opinion, was “that she authorized mastectomy only if there was a positive biopsy,” and there was none in this ease. Since “a positive biopsy” was a clearly stated precondition, and since, as yet, we citizens remain autonomous in the power to accept or refuse medical treatment, performing a mastectomy in this case without first obtaining a positive biopsy constituted a completed cause of action. Whether the patient was exercising good medical judgment in imposing this precondition to a mastectomy misses the point, and the damages are obvious: the plaintiff lost her breast. See and cf. Tabor v. Scobee, Ky., 254 S.W.2d 474 (1952), holding that surgically removing the patient’s ovaries without informed consent stated a cause of action without regard to whether to do so was good medical practice, citing the opinion by Justice Cardozo in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1915):
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.... This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained.
Tabor v. Scobee and Justice Cardozo’s opinion in Schloendorff are still good law, and no precedent from this Court mandates a different result in present circumstances.1
Next the Majority Opinion seems to suggest that, while the trial court refused to do so, it could have permitted “amendment or withdrawal” of the admissions. It would have been an abuse of discretion and clearly erroneous for the trial court to permit withdrawal or amendment of the matters admitted after trial had commenced. Rule 36.02, which deals with the effect of admissions, specifies that the “matter admitted ... is conclusively established unless the court on motion permits withdrawal or amendment of the admission,” permitting withdrawal in certain limited circumstances, but certainly not in the circumstances presented, where the trial was in progress and the defendant claimed neither inadvertence or mistake.
Here the admitting party plainly stated that the reason the requests were admitted was not through inadvertence or mistake, but because at the time “we felt it was appropriate to admit them.”
A more restrictive standard must apply to permitting withdrawal or amendment of admissions after trial has commenced than would apply when there is advanced notice with opportunity to prepare for the changed circumstances. See Brook Village N. Assn., et al. v. General Electric Co., 686 F.2d 66, 72 (1st Cir.1982): “Rule 36 plainly contemplates a more restrictive standard ... once trial has begun.” Further, the conclusive effect of an admission is neither eliminated nor diminished because “a plaintiff presents evidence which overlaps questions controlled by admissions”; neither “default” nor “waive[r] [of] the right to rely on the matters controlled by the admissions” occurs. Id. at 71.
The Majority Opinion mistakenly assumes the plaintiff suffered no prejudice from the trial court’s error because she was prepared to put on other evidence to prove a cause of action based on lack of informed consent in addition to the admissions. The prejudice is obvious: if the admissions had been given conclusive effect, the plaintiff was entitled to a directed verdict; when treated only as evidentiary admissions, the jury relied on other evidence and rejected the plaintiffs claim. To say the least it is difficult to grasp the logic in the Majority Opinion attributing no prejudice to the trial court’s decision to treat these admissions as evidentiary rather than conclusive, when the difference was between winning and losing on this claim.
The Court of Appeals and the appellees rely on Smith v. First National Bank of Atlanta, 837 F.2d 1575 (11th Cir.1988) in support of the right to withdraw or amend admissions in appropriate circumstances. The Smith case is of no help in deciding the present case because it involved a failure to respond to a request for admission which was (1) inadvertent and “excusable neglect,” and (2) further involved a request to withdraw made before trial, during the pretrial discov*624ery procedure. Here defense counsel plainly stated the decision not to deny the request for admissions was a deliberative and intentional process, and the request to withdraw was made only during the trial.
The Majority Opinion is uncertain in its reasoning, so it is difficult to perceive exactly what it is saying to the practicing bar as to how to treat admissions in future cases, and when to permit them to be withdrawn or amended. When it says that “admissions should be narrowly construed” (si. op., p. 8), surely it does not mean they should not be reasonably construed. And surely it does not mean there should be unfettered discretion to withdraw or amend admissions at any time and with no reasonable excuse. The only thing clear in this confusing opinion is that we approved the action of the trial court in treating judicial admissions as evidentiary admissions. This is certainly not the message the opinion intends to convey, as the opinion plainly states that to do so was error.
We have affirmed a result when there is no reasoning to support it.
STUMBO and WINTERSHEIMER, JJ., join.
. Nothing in KRS 304.40-320, which attempts to codify the common law as to when informed consent has been given and obtained, remotely suggests a different result.